Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Thursday, March 10, 2005

Hayes v. Brown (9th Cir. - March 7, 2005)

The California Supreme Court issues a unanimous opinion upholding the death penalty for Hayes in 1990. One of the claims that the Court squarely rejects -- even after a writ of habeas corpus directly raises the issue -- is that the state engaged in misconduct when it allowed (indeed, affirmatively conspired to ensure that) a central witness would falsely testify that he hadn't received a deal for his testimony.

But the Ninth Circuit in this case unanimously holds that the prosecutor did indeed commit such misconduct. With the agreement of such classic liberals like Kleinfeld, Gould, Tallman, and Bybee. (I hope that you sense my dripping sarcasm. Of course, as you might expect, these four want to find that the error is harmless, and hence ensure that Hayes still gets killed. But they're outvoted. Since it's not.)

At a minimum, the case demonstrates the value of federal habeas. Even after what I'm sure was a quality, non-results-oriented review of the case by the California Supreme Court. These things sometimes drag on for a reason. Here, it was because the prosecution was being as sleazy as in any case I can recall for a while. (Here's a snippet from the notes of the counsel for the witness that allegedly had no deal: "D.A. rec O.R. on this. Van Oss [the lead prosecutor] is guy to see. . . . THIS IS SECRET INFO!! Don't tell the client, or let the word out, or this guy's a goner.")

A telling case. Here's another tidbit (not mentioned in the case): the prosecutor, Terrence Van Oss, is now a judge in Stockton. Glad to hear it. That's the kind of quality ethics I want to see on the bench.